Reshaping the courts

President Bush has endured a lot of carping from conservatives, and not just for his handling of the war in Iraq. But one area where he deserves great credit is in his judicial nominations, which are reshaping the courts much in the way President Reagan's picks did 20 years ago.

The president's mark was on display this week as the U.S. Supreme Court heard arguments involving the assignment of public school students on the basis of race. The two cases before the court both involve plans designed to ensure racial balance at schools in their respective districts.

The Seattle school system runs an open enrollment program for the city's 10 high schools in which ninth-graders may choose which school they wish to attend. However, about half the schools are oversubscribed, meaning more students wish to attend than there are places to accommodate them. Under its plan, the Seattle school district required that race be used in what it called a "tiebreaker" to determine who was admitted to the oversubscribed schools if the racial balance fell outside a certain range.

The Louisville (Ky.) plan, which involved all city and surrounding Jefferson County schools, was implemented by the school board after the district emerged from a 25-year court-ordered desegregation plan. The Louisville plan required all schools to have at least 15 percent and no greater than 50 percent black student enrollment.

The school districts don't deny that they make decisions concerning which students attend which schools based on the color of their skin, but the districts claim this sort of racial classification is constitutional because its aims are to promote integration, not segregation. It is much the same case made by colleges and universities to justify affirmative action programs that give preference in admission to minority students on the basis that such programs increase diversity.

But the new Bush-appointed justices didn't appear to be buying the argument this week. As New York Times veteran reporter Linda Greenhouse noted, "By the time the Supreme Court finished hearing arguments on Monday on the student-assignment plans that two urban school systems use to maintain racial integration, the only question was how far the court would go in ruling such plans unconstitutional."

Greenhouse reported that the court's liberal justices "appeared increasingly and visibly dispirited" as the arguments proceeded. Clearly, the balance on the court has shifted, and no longer will justices be able to make up the law as they go along in order to justify what they consider to be socially desirable ends.